The UK Foreign Secretary David Cameron and former Speaker of the US House of Representatives Nancy Pelosi raised the issue last month of Hong Kong’s new Article 23 national security proposals, which have been a subject of considerable controversy and debate in recent years. The Article 23 law in Hong Kong’s Basic Law stipulates that the Hong Kong Special Administrative Region (HKSAR) shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organisations or bodies from conducting political activities in Hong Kong, and to prohibit political organisations or bodies of Hong Kong from establishing ties with foreign political organisations or bodies.

The proposed legislation aims to address issues related to national security, counter-terrorism, and foreign interference. However, concerns have been raised about potential threats to civil liberties and freedom of speech in Hong Kong. Critics argue that the proposed laws could be used to suppress dissent and target political opposition in the region. The Hong Kong government has faced pressure from Beijing to implement the Article 23 national security proposals, following pro-democracy protests and civil unrest in recent years. The controversial national security law imposed by Beijing in 2020 bypassed the local legislature and sparked international condemnation.

The proposed Article 23 legislation has sparked ongoing debates about the balance between national security and civil liberties in Hong Kong. Advocates argue that strong national security laws are necessary to protect the region’s stability and sovereignty, while opponents fear that such laws could erode the city’s autonomy and freedoms.

As the situation continues to unfold, the future of Hong Kong’s national security proposals remains uncertain, with key questions surrounding the scope and implications of the proposed legislation. The issue is likely to remain a focal point in Hong Kong’s political landscape for the foreseeable future.

Hong Kong’s Basic Law and its relationship with the PRC

The Hong Kong Basic Law is the mini-constitution of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China. It was adopted on April 4, 1990, by the Seventh National People’s Congress and came into effect on July 1, 1997, the date of the handover of Hong Kong from the United Kingdom to China. The Basic Law was designed to ensure that Hong Kong would retain its legal, economic, and political systems for 50 years after the transfer of sovereignty, under the principle of “one country, two systems.” This principle allows Hong Kong to maintain a high degree of autonomy, except in foreign and defence affairs.

Threats to freedom of speech and civil liberties in Hong Kong

Since the handover, there have been growing concerns about the erosion of freedoms and civil liberties in Hong Kong, including freedom of speech. These concerns have been exacerbated by various actions taken by the central Chinese government or the Hong Kong local government, which are seen as attempts to suppress dissent and tighten control over the region. Notable examples include instances where journalists critical of the Hong Kong or Chinese governments have faced violence, legal challenges, and other forms of harassment. Actions such as the banning of the pro-independence Hong Kong National Party and the disqualification of pro-democracy lawmakers from the Legislative Council have raised alarm. There have been moves to alter educational materials to reflect a more pro-China narrative, as well as the removal of books critical of the Chinese government from public libraries.

The 2020 National Security Law

The National Security Law, officially the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, was enacted on June 30, 2020. It targets acts of secession, subversion, terrorism, and collusion with foreign forces to endanger national security. Critics argue that the law is vaguely worded and grants broad, sweeping powers to the authorities, posing significant threats to Hong Kong’s freedoms and autonomy. The law’s implementation has led to widespread international criticism, arrests of prominent democracy activists, and a chilling effect on freedom of speech and protest.

The Article 23 proposals

The Article 23 proposals put forth in the consultation paper aim to make significant changes to Hong Kong’s legal system and human rights protections, beyond the reach of the National Security Law. These include:

1.  Extension of police detention without charge: This would allow authorities to hold individuals for longer periods without formally charging them, potentially impacting individuals’ rights to a speedy and fair trial.
2. Restrictions on detainee rights: The proposals suggest limiting detainees’ access to legal representation of their choosing, which could hinder their ability to defend themselves effectively, such as those of Jimmy Lai.
3. Changes to sentencing reductions: People convicted under national security offences might be denied the opportunity for sentence reduction based on good behaviour, affecting their ability to seek rehabilitation and early release.
4. Fast-tracking national security trials: The paper mentions eliminating certain procedures to hasten the legal process for national security cases, potentially raising concerns about the adequacy of defence and overall fairness in trials.
5. Overall, these proposals could significantly erode due process and fair trial rights for the people of Hong Kong. If implemented, they could have wide-reaching consequences for human rights protections in the region, going beyond the impact of the National Security Law imposed by Beijing in 2020. These rights, which have long been safeguarded in Hong Kong under the Basic Law, could face new challenges under the proposed Article 23 legislation.

Challenges to the rule of law

The enactment of the National Security Law and the controversies surrounding Article 23 are seen as direct challenges to the rule of law in Hong Kong, undermining the legal framework that has allowed the territory to thrive as a global financial centre. The independence of the judiciary, a cornerstone of Hong Kong’s rule of law, is under perceived threat, with concerns that the legal system is being leveraged to suppress opposition and dissent.

In summary, while the Hong Kong Basic Law was designed to protect the region’s freedoms and autonomy, recent developments including the National Security Law and controversies around Article 23 have led to significant concerns regarding the future of freedom of speech, civil liberties, and the rule of law in Hong Kong.

Hong Kong Watch has submitted its concerns to the Hong Kong government regarding the proposed Article 23 legislation. The Hong Kong government initiated a public consultation for this new domestic security legislation on January 30, 2024, looking to prohibit seven types of offences. However, the proposed provisions are seen as vague and could potentially criminalize peaceful human rights exercises by the people of Hong Kong, raising fears about due process and fair trial rights being undermined.

The implementation of Article 23 is anticipated to have severe consequences for human rights and freedoms in Hong Kong, going beyond the impact of the 2020 National Security Law imposed by Beijing. Additionally, it is suggested that this new legislation would violate Hong Kong’s international obligations under various human rights laws.

In response to the consultation, Hong Kong Watch, along with over 85 civil society organizations, released a joint statement on February 19 condemning the government’s actions. They called on concerned governments to publicly oppose Article 23 and to communicate their concerns directly to the Chinese and Hong Kong authorities. The statement also urged the international community to hold Hong Kong officials accountable through targeted sanctions among other recommendations.

Despite the government’s condemnation of the joint statement, Hong Kong Watch stands by its submission to the public consultation, outlining recommendations such as repealing the 2020 National Security Law, ensuring compliance with international legal obligations, and emphasizing that any restrictions on the basic rights of Hong Kong citizens should be within legal boundaries and consistent with international human rights standards.

Notes

• The Declaration establishes a Hong Kong Special Administrative Region (SAR) which will be “directly under the authority” of the Central People’s Government of the People’s Republic of China.
• The SAR states that Hong Kongers (Article 12) “will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People’s Government”. The SAR set out how the laws currently in force would remain basically unchanged, with the SAR vested with “executive, legislative and independent judicial power, including that of final adjudication”.
• The Declaration declares the current social and economic systems will remain unchanged for 50 years following the handover (to 2047), as would its existing rights, freedoms and lifestyle. This explicitly includes rights and freedoms of the person, of speech, of the press, of assembly, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief.
• Article 45 states, the Government will be composed of “local inhabitants” with the Chief Executive appointed by the Central People’s Government “on the basis of the results of elections or consultations to be held locally”.
• The SAR will retain the status of a free port and a separate customs territory. The Declaration protects private property and foreign investment and states the SAR will “retain the status of an international financial centre” with independent finances. The SAR may develop and conclude agreements with states, regions and relevant international organisations and issue travel documents for entry into and exit from Hong Kong.
• The Government of the SAR is responsible for maintaining public order.
• The Declaration includes an annex which expands on the above points. The provisions of the Joint Declaration are enshrined in Hong Kong’s Basic Law. The text of the Declaration is attached to the end of this briefing paper.